Tag Archives: Tenthers

Oh my, there is something to be said for not jumping on the Fox Faux News bandwagon in seemingly opportune moments — and Senator Dean Heller (R-NV) may be feeling a bit of that now? [NVP]

Only days ago Senator Heller was calling Cliven Bundy and his Brigands “patriots.” [Roll Call] Senator Reid’s commentary on this latest manifestation of the radical right (domestic terrorists) was “too broad a brush” for Senator Heller who was concerned about federal lands in Nevada and the proportionality of BLM operations.

And then Mr. Bundy started talking…..

He talked about people (read African Americans) in North Las Vegas. He talked about people sitting on porches with nothing to do. He talked about people getting government subsidies instead of picking cotton. He talked about how “maybe they were better off” in those good old days…. [NYT] Update: The Rachel Maddow Show provided context for Mr. Bundy’s remarks which explains the radical racism forthcoming from the “sovereign citizen” rancher. (video)

Senator Heller moved quickly from characterizing Mr. Bundy and his cohorts as “Boy Scouts and Grandmothers,” to back pedaling as fast as he could: ” Chandler Smith, a spokesman for Mr. Heller, said that the senator “completely disagrees with Mr. Bundy’s appalling and racist statements, and condemns them in the most strenuous way.” [NYT]

The Nevada Democratic Party reacted swiftly, and noted that Senator Heller wasn’t the only Nevada Republican to associate him or herself with the Bundy Cause Celebre:

“These comments are reprehensible, and every Republican politician in the state of Nevada who tried to latch on to Cliven Bundy’s newfound celebrity with TEA Partiers and the militia movement should be ashamed of their actions. If Dean Heller, Cresent Hardy, Niger Innis, Michelle Fiore, Adam Laxalt and every other Republican politician who tried to attach themselves to this man seemed desperate a week ago, now they look downright pathetic. Every Republican elected official who risked inciting violence to gain political capital out of Cliven Bundy now owes the people of Nevada an apology for their irresponsible behavior of putting their own political future ahead of the safety of Nevadans.”

Why would anyone be particularly shocked that Cliven Bundy would receive accolades and support from any of these self identified and self described conservative Republicans?

Assemblyman Wheeler earned some notoriety last October when he told a Story County GOP crowd he’d ‘hold his nose and vote for slavery if that’s what his constituents wanted.’ [LVSun] Which is probably why we generally don’t want the majority voting on minority rights.

Senator Gustavson happily signed onto the “10-4” pledge as a member of the 10th’ers. “I have always been a strong supporter of the 10th Amendment and the Constitution itself including all of the “Bill of Rights”. I was a co-sponsor to AJR 15, (Claims sovereignty under the Tenth Amendment to the U.S. Constitution) during the 2009 Session of the Nevada Legislature. It is time for Americans and the States to take back their constitutional rights!”

Assemblyman Ellison is the Hero of the Battle of Bunkerville, to some, — “If the(re) was a hero in the Bundy Ranch standoff it was Nevada Assemblyman John Ellison who when most other Nevada political leaders were heading as far away from the range war as possible, Ellison charged in and just may have prevented the standoff from exploding.” [CTV] Assemblyman Ellison might have wanted to join the more cautious members of his party and distance himself from the racists and militia radicals who constituted the ‘protesters’ in Bunkerville — before Mr. Bundy started talking?

Assemblyman Hansen has something in common with Mr. Bundy, both have refused to pay fines for illegal operations. Assemblyman Hansen has an ongoing feud with the Nevada Department of Wildlife who fined him for placing snare traps too close to a highway. They fined him, he refused to pay. [RGJ] Sound familiar?

Assemblywoman Fiore seemed happy to bask in right wing praise for her TV time discussing the situation with Cliven Bundy, [CL] She’s also happy to tell us she’s a lifetime member of the NRA, who is pleased to support open carry on school campuses. [TNV] [HJ] Perhaps the question should be not why she’s backing the likes of Cliven Bundy, but why it took her so long?

And, no, the Nevada Democratic Party probably won’t be getting any apologies from these people or explanations as to why they chose to support a radical, racist, law breaker any time soon.

For those inclined to believe that the Assembled Wisdom in Carson City, NV is somehow immune from the conspiracy theorists whose adherence to a radical interpretation of the 10th Amendment is tantamount to the faithful offering up sacrifices to the Exodus 32 model golden calf — they aren’t. The Republican Central Committee of Carson City is pleased to inform us they are enthusiastically supporting SJR 3, a perfect recitation of the Tenther’s Ideal. The Elko Daily Free Press offers a bit more information on the subject, regarding the intent of the sponsor, Assemblyman Settelmeyer:

“Senate Joint Resolution 3 proposes Nevada claim sovereignty as a state and order a cease-and-desist for all federal mandates deemed beyond those enumerated in the Constitution. Settelmeyer provided examples of the federal government deeming 2,500 acres in Douglas County a flood plain, even though there is no record of flooding in the area, and changing arsenic regulations for water.”

Will you have that with or without the arsenic? There are some problems with Assemblyman Settelmeyer’s assessment. Yes, moving from 50 ppb to 10 ppb as acceptable levels for arsenic in drinking water is difficult in some areas in which arsenic is a naturally appearing phenomena. However, it’s not like 10ppb is an impossible goal. Arsenic is an accumulative poison. It is not good for human beings. It really isn’t something that ought to be present in the water we drink, much less in the water we use to mix infant formula. But, it’s not an impossible problem. There are several ways in which arsenic contamination can be abated. Blending water from wells with varying levels of arsenic is one possibility, and there are arsenic treatment technologies which can be applied to mitigate the problem.

Better still, that self-same Federal government which establishes the acceptable levels is also the source of funding for arsenic abatement projects. Local water systems may have to support research into their arsenic issues; may have to try several options before the problem is mitigated; and, may have to expend some funds to arrive at a solution. The point that Assemblyman Settelmeyer is missing is that much of the engineering and technological assistance needed to meet the arsenic level requirements is funded by grants or low interest loans from the Federal Government.

Assemblyman Settelmeyer’s “solution” appears to be to address arsenic contamination by rejecting the federal standards as “unconstitutional” and letting the state declare whatever “standards” might be convenient for local water suppliers. This solves every problem EXCEPT for the arsenic in the water. What? You don’t want Granma’ or the infant in the family drinking arsenic contaminated water? The obvious solution in Settelmeyer Land would be to move the family?

As to the floodplain designation… it’s a matter of insurance, as explained by NFIP:

“Since standard homeowners insurance doesn’t cover flooding, it’s important to have protection from the floods associated with hurricanes, tropical storms, heavy rains and other conditions that impact the U.S. In 1968, Congress created the National Flood Insurance Program (NFIP) to help provide a means for property owners to financially protect themselves. The NFIP offers flood insurance to homeowners, renters, and business owners if their community participates in the NFIP. Participating communities agree to adopt and enforce ordinances that meet or exceed FEMA requirements to reduce the risk of flooding.”

In order to get flood insurance a property owner must live in a community which participates in the National Flood Program, and Douglas County, NV has been aligned with the program since 1975. The mapping is an important component of the insurance system:

“Through its Flood Hazard Mapping Program, FEMA identifies flood hazards, assesses flood risks, and partners with States and communities to provide accurate flood hazard and risk data to guide them to mitigation actions. Flood Hazard Mapping is an important part of the National Flood Insurance Program, as it is the basis of the NFIP regulations and flood insurance requirements. FEMA maintains and updates data through Flood Insurance Rate Maps (FIRMs) and risk assessments. FIRMs include statistical information such as data for river flow, storm tides, hydrologic/hydraulic analyses, and rainfall and topographic surveys. FEMA uses the best available technical data to create the flood hazard maps that outline your community’s different flood risk areas.”

Insurance is all about calculating risk, and different flood risk areas determine insurance availability. So, what’s the issue?

“Homes and businesses with mortgages from federally regulated or insured lenders in high-risk flood areas are required to have flood insurance. While flood insurance is not federally required if you live in a moderate-to-low risk flood area, it is still available and strongly recommended.” [FloodSmart]

If the area involved in Assemblyman Settelmeyer’s critique hasn’t flooded recently, then the property isn’t a “high risk flood area,” and flood insurance would not be required for a federally regulated or insured lenders mortgage. Further, if a property owner has land which is unlikely to be flooded a designation can be altered to accommodate the property owner. [Floodsmart] What Assemblyman Settelmeyer appears to be lamenting is that property owners of the 2,500 acres in Douglas County are eligible to purchase flood insurance IF they want to from a local insurance agent. Now, why might they want to? The insurance industry has some advice:

“Although flood insurance can be relatively inexpensive depending on where you live, most Americans neglect to purchase protection. Yet your home has a 26 percent chance of flooding as opposed to the 9 percent chance of fire during the course of a typical 30-year mortgage, according to the NFIP. Almost 25 percent of all flood insurance claims come from areas with low to moderate flood risk.” [Insure.Com]

The insurance sector has also made the following pertinent calculation: “Areas with a 1% chance of flooding in a given year are considered high-risk areas. At least 25% of homes in high-risk areas flood at least once during the term of a 30 year mortgage. Many flood more than once.”

Note that the NFIP offers insurance eligibility in designated areas. The federal government doesn’t sell flood insurance, a home or business owner buys the policy from participating private insurance companies. What would this mean for persons in Settelmeyer’s example, those property owners in Douglas County?

“Special Flood Hazard Areas (SFHA) are defined as the area that will be inundated by the flood event having a 1-percent chance of being equaled or exceeded in any given year. The 1-percent annual chance flood is also referred to as the base flood or 100-year flood. These FEMA flood zones are typically x-shaded, A, AO (with a depth associated), and AH, and AE.

The non-technical and simplified definition of a Floodplain is “an area adjacent to a body of water.” But using this definition to determine if your property is in a floodplain is deceiving. You may be located five miles or more from a river or stream and find your house covered with water from the overflow of their banks. Floodplains have varying characteristics and may not be easily identified as such. The FEMA flood zones for a floodplain are typically AE and AE-floodway.” [Douglas County]

The instructions in the information offered by Douglas County refer to maps which are available for inspection at the planning office. Notice that the insurance industry’s 1% rule applies to eligibility for flood insurance in high risk areas. One thing omitted from this explanation is that a flood somewhere a bit distant from the home owner’s property can cause a sewer back up right there in the old homestead — which would be covered IF the property owner bought flood insurance. So, why would anyone object to eligibility for flood insurance?

Perhaps the answer lies not with the property owner, but with the property developers? Douglas County has some special provisions:

“Floodplain development permits, Special requirements for land division in SFHAs, and Standards for Construction in the SFHA and Floodplain are all covered in Title 20.50 Floodplain Management of the Douglas County Consolidated Development Code. Douglas County has had floodplain regulations since 1974 and also participates in the National Flood Insurance Program (NFIP) Community Rating System (CRS) in order for property owners to acquire discounted flood insurance. As a participating community, the County must follow the Federal Emergency Management Agency (FEMA) regulations at a minimum for the permitting of construction within the special flood hazard areas.”

One might speculate that a developer might not want to abide by standards adopted by Douglas County for development permits under Title 20.50?

In short, Assemblyman Settelmeyer’s “solution” to the sovereignty issue would have two immediate results — both related to the examples he provides — both of which are bad news. (1) Those communities in his area seeking to mitigate arsenic contamination in drinking water supplies would be ineligible for federal funding assistance in mitigating or eliminating the hazard; and, (2) property owners in parts of Douglas County whose residential or business property might be determined to be located in flood plain management areas would not be eligible to participate in flood insurance programs. Thus much for “sovereignty” if a man’s home is his castle — but the moat has moved inside.

***

*SJR 3 is sponsored by Settelmeyer, Gustavson, Hutchison, Cegavske, Goicoechea, Wheeler, Grady, Hansen, Kirner and was refered to the Committee on Legislative Operations and Elections on February 6, 2013. It was heard by the committee on February 19, 2013 with no action taken. [pdf notes]

Congressional opposition to the Violence Against Women Act comes clad in the patriarchal toga of a radical interpretation of the 10th Amendment. The traditional Roman 20 feet of woolen cloth draped over the tunic is surely sufficient to cloak the misogyny which might be a factor for some members of the 113th Congress. However, it is now, and always has been a minority view and no amount of high flying rhetoric (or cable news air time) can make it more than what it’s always been — a convenient cover for “State’s Rights.”

The Tenthers found their pseudo-philosophy on Madisonian fragments. “Their basis for ignoring the plain language of the Constitution is a statement by James Madison that federal spending is only really permitted when it advances one of Congress’ other enumerated powers, such as by building a post office or funding a war.” [Prospect] However, the Tenther’s philosophical underpinning breaks down almost immediately, in the provisions of the “enumerated powers” section of the Constitution itself. The closing lines of Article I, Section 8 (the enumeration of powers) provide Congress with the power:

“To make all laws necessary and proper for carrying into execution the fore-going powers, and all other powers vested by this Constitution in the government of the United States, or in any Department or officer thereof.”

Mr. Madison may have wished for a State’s Rights emphasis in the Constitution, but he lost. He may have wanted a founding document closer to the old Articles of Confederation, but his side did not prevail. Further, when he did assume the Presidency of the United States whom did he appoint to the Supreme Court but Justice Story — a confirmed Hamiltonian Federalist.

If a secret decoder ring, tea leaves, crystal balls, and anachronistic projection aren’t enough to deconstruct the U.S. Constitution into a milk toast version of the Articles of Confederation, then what’s a Tenther to do? There is an interesting crossing of ideas in the Tenther Theology — are they angry with “activist judges” who legislate from the bench — especially when they affirm provisions of the Violence Against Women Act — or do they want a Constitution so rigidly interpreted that neither Congress nor the Courts may legislate or confirm such legislation at all?

Government Shouldn’t Govern?

The Tenther Radicals make an assumption about governance which is profoundly antithetical to the notion of American progress. If the legislation in question promotes privatization and individualism then it is Constitutional, if the legislation promotes the general welfare or secures common support for needs of significant categories of citizens then it is unconstitutional. There are some significant historical examples to which we can refer.

Tenthers railed against the enactment of Social Security during the Depression as a “power grab” of the first water. The transcripts of Senatorial debate are instructive, if somewhat tedious in detail, and illustrate the continuing discussion about the efficacy, efficiency, and constitutionality concerning this centerpiece of New Deal legislation. Modern Tenthers seek to privatize the Social Security program under the rubric of “saving” it, or “strengthening” it, or “reforming” it. However, each of the proposals actually set forth to accomplish this end result in Privatization.

Tenthers were appalled by the Supreme Court’s decision in Brown v. Topeka Board of Education. The landmark modern civil rights case struck the Old South like lightning. As Jim Crow Era laws were struck down, or legislated out of existence, the cry for State’s Rights (Tenth Amendment) increased. The rallying cries may have changed from Segregation Now Segregation Forever, to No Affirmative Action; but, the voices are essentially the same. Proscribed behavior, such as discriminating against people of color, women, and members of the LGBT community, has been reframed by white (and often male) dissenters to create a sense of victim-hood. Thus, in the radical thinking of the Tenther camp if one is prevented from discriminating, or prevented from individual actions which could result in community harm, then the perpetrator becomes the erstwhile victim.

Victims and Victim-hood

The Tenthers have now reached toward the Violence Against Women Act and seek to fly their Over-reaching Power of Government banner against this statute. It should be noted that the 2000 U.S. v. Morrison case to which they often refer, did rule against using the Commerce Clause as a foundation for VAWA, but left the essential features of the legislation intact. It is certainly better optics to argue against the VAWA authorization as “unconstitutional” as opposed to standing on the floor of the House or Senate maintaining that the Rule of Thumb (you can’t beat your wife with a piece of lumber of greater circumference than your thumb) should be the law of the land. Here, again, we find the “victim-hood” revision.

“Claiming that the reauthorization would expand the definition of domestic violence to include “emotional distress,” Heritage declared that the “expansive and vague language will increase fraud and false allegations, for which there is no legal recourse.”

“Under VAWA, men effectively lose their constitutional rights to due process, presumption of innocence, equal treatment under the law, the right to a fair trial and to confront one’s accusers, the right to bear arms, and all custody/visitation rights,” the group wrote. “It is unprecedented, unnecessary and dangerous.” [TPM]

Lo, the poor wife beaters? Those who psychologically damage their victims could be the “victims” of false allegations? With no legal recourse? In the instance of rape the best statistics indicate a false report rate of approximately 8%. [Slate] This is why we have prosecutors and trials. Those instances in which the crime was not completed are classified as assaults, and those which are completed, but without substantiation or conviction aren’t counted. Juries are the finders of fact. No fact. Probably no prosecution. No conviction.

What the Conservatives appear to be lamenting is not the false allegation, but the ramifications of being convicted of domestic violence. Does anyone seriously believe that a man or woman who is convicted of an act of domestic violence should be able to “visit” the family he or she has just brutalized? The statistics on gun violence add another layer:

“Although firearms are used in a relatively small percentage of domestic violence incidents, when a firearm is present, domestic violence can and all too often does turn into domestic homicide. Congress, recognizing the unique and deadly role firearms play in domestic violence passed the Protective Order Gun Ban in 1994. The law prohibits gun possession by a person against whom there is a restraining or protective order for domestic violence. In 1996, Congress passed the Domestic Violence Misdemeanor Gun Ban, which prohibits anyone convicted of a misdemeanor crime of domestic violence or child abuse from purchasing or possessing a gun.” [VPC]

If one has already threatened the family with a baseball bat, knife, or other any other weapon — are the conservatives arguing that the person should have the “right” to escalate the violence by adding in a few firearms?

“The newest version of the VAWA, S.47, contains very vague and broad definitions of domestic violence,” the organization wrote. “A man that raises his voice at his partner, calls her an offensive name, stalks her, causes her any emotional distress, or simply just annoys her can potentially be prosecuted under the VAWA. Calling your spouse a mean name is not advised or polite, but it isn’t the same thing as violence towards her.”

Really? What would we call a person who shouts vile epithets at a partner every day for a year? A person who uses offensive language, especially in front of children, at top voice (or drunken slur) for weeks on end is “impolite?” Stalking a domestic partner is “not advisable?” If the behavior is sufficiently abusive to cause a person to get a restraining order, then is it not “violent?”

One legal authority describes the effects as a component of verbal abuse as follows:

“Perpetrators of verbal abuse often misuse their authority and prey on those in a subordinate position. Victims of verbal abuse are often told they are to blame for the abuser’s behavior and reluctant to take action to end the abuse. Verbal abuse may lead to stress, depression, physical ailments, and other damage.” [USLegal]

So, by the lights of the conservative opponents, abuse which leads to stress, depression, physical ailments and other damage, isn’t really violent? Must the victim be physically injured? Must the injury require bone setting, or will a few stitches be enough? Must the injury be permanent? Scarring? How much blood must be on the floor before the opponents of VAWA are satisfied?

How many women or domestic partners must be subjected to domestic violence before the federal government can assist state and local police with funding for domestic violence training and support programs? Are the Tenthers arguing that the federal government has no role to play in the following state and local programs?

“VAWA, FVPSA, and VOCA funding support domestic violence shelters, law enforcement, courts, rape crisis centers, children’s services, prevention, community outreach, and other state and local programs that provide services for victims and families. These programs have made significant progress towards ending domestic and sexual violence. Statistics show a significant decline in domestic violence since VAWA was first enacted in 1994. In addition to saving lives, VAWA, FVPSA, and VOCA save money by reducing future violence and other related social costs.” [NNEDV]

What the Tenthers are essentially telling victims of domestic violence is that the Federal government exceeds its constitutional authority when it assists states and local governments with violence prevention programs, with law enforcement efforts, with community outreach and educational programs, and with shelters for abuse victims. This is not a usurpation of state and local authority, but a collaborative effort to end a scourge perpetrated by those who mis-use and abuse their authority over others, and who prey on those in subordinate positions.

The Tenthers have no substantial legal or constitutional argument to make, they have an unfortunate history of using their radical theory to perpetuate some of the more egregious practices and traditions in American life, and they are now clutching their togas and seeking to hide a misogynistic agenda beneath the folds of a document which begins with “WE the people.”